Around the world, women have made impressive gains in the struggle for equality. This positive momentum is now in jeopardy. There are concerns that the election of President Trump has placed women’s rights, particularly women’s sexual and reproductive rights in a precarious position. In reaction to these threats, there has been a strong global grassroots campaign championing women’s rights. Equality lawyers have a crucial role to play in translating this energy and activism into concrete legal and policy measures. They can have a strong voice in developing sophisticated legal strategies that are targeted to preserving past successes and pushing women’s rights forward for an inclusive and transformative future.
Although events and statements from high-ranking officials in the US receive a significant amount of attention, Brexit also raises serious issues for the protection of women’s fundamental right to equality. The debates in the UK have focused on immigration and trade. Equality has scarcely received attention despite the significant implications of Brexit for equality rights. EU law currently requires Parliament to provide legal protection for equality rights. It is through the positive relationship between the UK and the EU that women are protected against pregnancy discrimination, equal pay for work of equal value and guaranteed a minimum wage. Without the binding force of EU law, there is no obstacle to Parliament repealing or undermining women’s right to equality. We have already seen the stealthy erosion of the right to equality through the introduction of tribunal fees. This has led to a 71% drop in sex discrimination claims and in effect created zones of impunity where it is permissible to violate women’s rights. The Criminal Justice and Courts Act 2015 is also making it harder to bring actions for judicial review to ensure public authorities fulfil their public sector equality duties, as well as hindering the ability of public interest groups to intervene in cases to promote equality.
We need to examine how new and existing mechanisms and institutions can be developed to uphold women’s rights. In our recent submissions to the Parliamentary Joint Committee on Human Rights and the House of Commons Women and Equalities Committee, we proposed several measures to strengthen and secure women’s equality rights. These can be a springboard for dialogue both in the UK and around the world on how to harness the activism on women’s rights into meaningful legal and policy interventions.
The UK is unique in not having a constitutional guarantee to equality. Rather equality is primarily protected in a statute: the Equality Act, 2010 (EA 2010). This legislation has, however, been underpinned by EU law, which treats equality as a fundamental right. With the removal of EU law, legislative protection for equality rights will be entirely dependent on Parliamentary majorities. To shield the right to equality from the influences of the political process, we need to think carefully how to strengthen the EA 2010. An important step would be to introduce a purpose clause into the EA 2010 stating the values which should guide interpretation and avoid overly narrow readings of the statute. The purpose clause can capture and reflect the goals of grassroots feminist campaigns: encouraging the development of a society in which people’s ability to achieve their potential is not limited by prejudice; there is respect for each individual’s dignity; each individual has an equal opportunity to participate in society and there is mutual respect between groups based on valuing diversity.
There are several other measures that could also have significance. To prevent a back-sliding of women’s rights guaranteed by EU law, serious thought should be given to adopting a principle of non-regression. The human rights and fundamental freedoms that women exercise and enjoy that have their origin in EU should not be taken away. In a similar vein, the EA 2010 can be classified as a constitutional statute. While the exact implications of this designation are unclear, at a minimum it would require that any amendments to the EA 2010 need to be specifically expressed. If Parliament wants to alter the right to equality it must do so openly. This in turn opens up opportunities for legal and political activists to campaign against any measures that undermine gender equality.
To continue the positive evolution of a robust right to equality, the UK courts should continue to draw on the case law from the Court of Justice for the European Union. In the past, the UK has drawn on EU law to give a more expansive interpretation of domestic legislation and this mutually beneficial relationship can still flourish post-Brexit. In a similar vein, the UK’s commitment to gender equality in the Convention on the Elimination of All Forms of Discrimination which has a rich understanding on the interaction between gender and human rights could become an important guide for ensuring that future interpretations and developments of the EA 2010 are sensitive to the needs of all women.
Women’s political, legal and social activism has sparked transformative legal change. Now is the time to build upon this success and in the face of new dangers uncompromisingly defend the fundamental right to equality.